Guide to the Law about Artwork Depicting Celebrities and Athletes

There is quite a bit of artwork out there that involves celebrities, including athletes, actors, politicians, and other famous people. With most of it, the artist probably has not received permission or consent from the celebrity. So the question is, is that legal? Here’s a quick explanation of the answer.

See more about the Law for Artists.

Rights of Artist vs. Rights of Celebrity

The main issue involved in these cases is the conflict between the artist’s rights of free expression (protected by the 1st Amendment) and the celebrity’s right of publicity.

The right of publicity is generally a restriction on making money off the “likeness” of a person without their consent. This is also called “right against appropriation” or “right against commercialization.”

“Likeness” can mean image, voice, name, signature, or anything else that would identify a particular person. Even an imitation or simulation of such likeness can be considered a likeness.¹Midler v Ford Motor Co. 849 F 2d 460 (9th Cir. 1988)

Everyone, not just celebrities, has a right of publicity (although celebrities generally can obtain more money compensation if they pursue legal action).

So, if you paint a picture of a celebrity, and sell it, does that infringe their right of publicity?

The general rule is that if the painting is a straightforward, realistic depiction of the celebrity, this may be a violation of the celebrity’s right of publicity. In other words, it could be a problem for the artist if the celebrity sues. However, if the painting contains “significant transformative elements,” for example, if it is stylized or distorted in some way, it’s probably OK.

In a 2003 decision,²ETW Corp. v. Jireh Publishing, Inc., 6th Circuit Court of Appeals a court held that it was acceptable for an artist to use the image of Tiger Woods to create 250 serigraphs and 5,000 lithographs. These were stylized prints that also included other golfers in the background.

The bottom line is that it involves some risk, so tread carefully.